The opinion of the court was delivered by: EDWARD R. KORMAN
Wilson Alejandro Mejia-Velez ("Velez",) was convicted after a jury trial of murdering, for money, Manuel de Dios Unanue ("de Dios"). See 18 U.S.C. § 1958 (1988 & Supp. II 1990). Prior to trial, the United States Attorney made a motion in limine seeking admission, inter alia, of (1) testimony of the defendant's accomplices that they asked him to be the triggerman because he had told them he had committed similar crimes in Colombia and (2) tapes of "911" telephone calls made contemporaneously by two eyewitnesses to the homicide. Moreover, during the course of the trial, defendant sought to offer several statements allegedly made by a co-conspirator, subsequent to the murder, regarding the identity of the real killer of de Dios. While defendant sought the admission of these statements without actually calling the declarant to testify, he was "available" to testify at trial, if the defendant had chosen to call him.
The purpose of this memorandum is to set forth formally and in somewhat greater detail the reasons for admitting the evidence of prior similar acts and the recordings of the 911 calls, and the reasons for excluding the hearsay statements of defendant's co-conspirator. The following summary of the evidence is necessary to provide an appropriate context for discussion of the legal issues.
On March 11, 1992, de Dios, a journalist and former editor of New York's largest Spanish daily publication, was shot in the head and murdered as he sat having a drink at a Queens, New York restaurant. The evidence revealed that de Dios was killed at the insistence of the "Cali Cartel," an association of crime families based in Cali, Colombia, that deal in narcotics. Because of his scathing exposes on the inner-workings of the cartel, de Dios was singled out for execution by Jose Santa Cruz Londono ("Londono"), head of the "Santa Cruz Family" of the cartel. In November 1991, from Cali, Londono issued a contract pursuant to which he offered $ 50,000 for de Dios's death.
Londono revealed the murder contract to his aid, Guiellermo Leon Restrepo Gaviria ("Gaviria"), who first decided to appropriate $ 30,000 worth of the bounty for himself. Gaviria then delegated responsibility for assigning the contract, now valued at $ 20,000, to one John Harold Mena ("Mena"), head of the "New York Office" of the Santa Cruz Family. Mena, although an experienced killer himself, offered the contract to a colleague from a prior homicide, Juan Carlos Velasco ("Velasco"). The evidence revealed that although Velasco had accepted the contract, he was forced to abort several inopportune attempts to murder de Dios.
In February 1992, several months after he had first issued the contract, Londono became impatient. When this fact was ultimately communicated to Velasco, via Mena, Velasco decided to "subcontract" the job. After meeting his friend Jose James Benitez ("Benitez") at a pool hall in Queens, Velasco offered Benitez the contract for $ 15,000, keeping $ 5,000 for himself. According to Benitez, Velasco did not relate to him the identity of the intended victim. Rather, Velasco is supposed to have said only that the target was "some guy who owed [Velasco] money from drugs." Tr. Vol. IV at 103.
Benitez undertook the assignment together with a companion of his, Elkin Farley Salazar ("Salazar"). Although, according to Benitez, both he and Salazar were willing to conspire to murder, the two men sought a third individual to actually "pull the trigger." Tr. Vol. IV at 96. Salazar then suggested that the defendant, an acquaintance of his, be hired to commit the murder. Benitez agreed. According to both Benitez and Salazar, the reason that they enlisted the defendant to carry out the deed was because the defendant had previously expressed a desire to engage in criminal work, and specifically had boasted to Salazar that in Colombia he, that is Velez, had participated in homicides. See Tr. Vol. II at 84-85 (Test. of Salazar); Tr. Vol. IV at 95 (Test. of Benitez).
The day of the murder, the three men -- Benitez, Salazar and Velez -- were given the details of their assignment by Velasco's common-law wife, Diane Elizabeth Castano ("Castano"). Castano showed the men a photograph of de Dios, and took the three to a restaurant in Queens, the Meson Asturias, where she told them de Dios was a frequent patron. When they arrived at the restaurant, Benitez and the defendant went inside to get a view of their target. Satisfied that they had seen him at the bar, the men exited the restaurant, and set out to prepare for the murder.
The weapon, a 9 millimeter Baretta, was procured by Salazar, who testified that he borrowed it from a friend. See Tr. Vol. II at 95. According to Salazar and Benitez, at Benitez's home the defendant prepared for the murder by covering his fingers with tape, and cleaning the weapon. See id. at 109 (Test. of Salazar); Tr. Vol. IV at 112 (Test. of Benitez). Benitez gave the defendant a grey hooded sweatshirt to wear, and the three then returned to the Meson Asturias. They parked nearby the restaurant and, according to Salazar and Benitez, the defendant then exited the car with the gun, and headed for the restaurant to commit the murder. Salazar and Benitez testified that they remained in the car. See Tr. Vol. II at 112 (Test. of Salazar); Tr. Vol. IV at 113 (Test. of Benitez). When the defendant returned to the car, he announced that it was "done," and the three men drove off. See Tr. Vol. II at 114 (Test. of Salazar); Tr. Vol. IV at 114 (Test. of Benitez).
The following day, Salazar and Benitez disposed of the gun by throwing it into Hallet's Cove, a small channel in the East River.
That same day, Castano received the balance of $ 20,000 from Mena (minus some previously-advanced amounts). See Tr. Vol. I at 120. A total of $ 15,000 was given by Castano to Salazar and Benitez, in satisfaction of their agreement with Velasco. See Tr. Vol. II at 123 (Test. of Salazar); Tr. Vol. IV at 126 (Test. of Benitez). According to Salazar, several days after the murder he drove with a friend, named Francisco Ochoa, to the defendant's home in Staten Island and delivered the defendant his share of the money. See Tr. Vol. II at 127-32. Salazar's testimony in this regard was corroborated by Ochoa, who testified that after the murder, which he learned about from television, he accompanied Salazar on a car ride to Staten Island, and witnessed Salazar hand something to the defendant, which Salazar later told Ochoa was money. See Tr. Vol. IV at 17.
The jury also heard testimony from two eyewitnesses who claimed that they saw de Dios's killer. While they were not able to identify the defendant as the shooter, the descriptions they gave were consistent with the physical appearance of the defendant. The first, John Martin Gajewski ("Gajewski"), testified that as he was walking down 83rd Street, approaching the Meson Asturias, he saw a man cross his path, withdraw a gun, and enter the vestibule of the restaurant with his arm raised. See Tr. Vol. V at 108-09. Gajewski heard two shots from inside the restaurant as he saw the man stand with his arm raised in the vestibule. Id. Gajewski then saw the man run out of the restaurant and across the street. Id. After witnessing this incident, Gajewski testified that he proceeded to the first telephone he could find, and "within three or four minutes," placed a call to "911." Id. at 111. In this call, Gajewski described the man with the gun as follows: "very, very thin . . . . I think white . . . . about five ten, wearing sneakers, a gray sweatshirt with the hood up, and white dungaree-type tight pants." Gov't Ex. 33b at 2. Sixteen minutes later, Gajewski called 911 once again, and gave the same description. Gov't Ex. 33d at 3.
The second eyewitness was Jose Maria Aguera ("Aguera"), the owner of the Meson Asturias, who was working behind the bar at the moment de Dios was shot. Aguera testified that as de Dios sat at the bar, a man entered the restaurant, approached and then shot de Dios from behind. See Tr. Vol. VI at 83. At trial, Aguera described the shooter as a man in his twenties, clean shaven and without a moustache, with skin of "a light color" and wearing a gray-hooded shirt. Id. at 84-85. Immediately after the shooting, Aguera likewise placed a call to 911, describing the assailant as a male Hispanic, wearing a "white and gray" shirt. Government Ex. 35b at 3-4.
At his arrest, over one year after the shooting, the defendant spoke with police detective Oscar Hernandez ("Hernandez"), who testified at trial. According to Hernandez, the defendant stated i) that he discussed the prospect of committing a homicide with Benitez; ii) that he drove to the "Meson" restaurant with Benitez and another individual (matching Salazar's description); iii) that Benitez and the other individual exited the car two blocks from the restaurant; iv) that when the two individuals returned to the car, Benitez took a gun out of his shirt and threw it on the floor; v) that the defendant then asked the two others "what happened" without receiving a reply; and vi) that the defendant did not receive any money in connection with the killing of Manuel de Dios. See Tr. Vol. VII at 56-58.
I. Similar Acts of the Defendant
On January 31, 1994, at a pretrial hearing, I held that Salazar and Benitez, the two accomplices that had recruited the defendant as the triggerman, could testify that they did so because the defendant had told them that he had been involved in the commission of homicides in Colombia. This evidence was highly probative because it enabled Salazar and Benitez to explain why it was that defendant, at the time a seventeen year old chair-factory worker, was chosen by them to participate in a homicide.
Specifically, Salazar testified that the defendant had told him that he was eager to earn some money and was therefore "willing to do a robbery, a death or a drug job." Tr. Vol. II at 85. Salazar clarified that a "death" meant a "murder." Id. at 86. Salazar also testified that the defendant had told him that he, that is the defendant, had been "involved in deaths" in Colombia. Id. at 84. Salazar did not elaborate on the details of any of these "deaths." Benitez testified that, while he and Salazar discussed the prospect of committing a murder, both men expressed an aversion to physically carrying out the deed. Tr. Vol. IV at 91. It was Salazar who then suggested that they contact the defendant because, according to Benitez, Salazar said that the defendant "had killed a lot of people in Medillin." Tr. Vol. IV at 95.
These statements were not offered for their truth -- that is, to show that the defendant did, in fact, commit homicides in Colombia. See United States v. Foster, 939 F.2d 445, 449, 455 (7th Cir. 1991) (verse written by defendant boasting that he was "the biggest Dope Dealer" was admitted not for truth, but as evidence of narcotics defendant's knowledge and intent); United States v. Ventura, 936 F.2d 1228, 1233 (11th Cir. 1991) (defendant's statements to co-conspirator not "admitted for their truth or as extrinsic act evidence; [defendant's] statements indicate that he held himself out to be an experienced drug dealer and demonstrate that he wanted to engage in the illegal transaction"). Nor were they offered to portray the defendant as the kind of person who would be likely to commit homicides. Cf. United States v. Williams, 985 F.2d 634, 637 (1st Cir. 1993) (reversing conviction for drug offenses where defendant's statement that "he had killed a couple of people" was admitted simply as evidence of defendant's bad character).
Rather, defendant's statements to Salazar and Benitez were offered to explain why this defendant was chosen to partake in a contract murder. See United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (prior act evidence admissible to "'help explain to the jury how the illegal relationship between [participants in the crime] developed'" (citation omitted)), cert. denied, 499 U.S. 940 (1991); United States v. Dworken, 855 F.2d 12, 26-27 (1st Cir. 1988) (defendant's statements boasting of prior drug transactions were admissible to explain context and nature of relationship between defendant and individual thought by defendant to be a drug operative).
That the statements were relevant and not offered "to prove the character of a person in order to show that he acted in conformity therewith," Fed. R. Evid. 404(b), does not end the inquiry. Prior act evidence will only be admissible where the probative value of the evidence is not substantially outweighed by its prejudicial effect. See Huddleston v. United States, 485 U.S. 681, 691, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988). To be sure, the potential for unfair prejudice is very real in any case in which the defendant is said to have admitted to prior homicides. Under the circumstances here, however, the prejudice to the defendant was more theoretical than real.
The evidence of prior acts here came from the same witnesses who testified that they hired the defendant to carry out the murder. If the jury found these witnesses to be credible, the defendant would be convicted even if the accomplices were not permitted to testify about defendant's admission of prior homicides. On the other hand, if the jury did not find their testimony to be credible with respect to the crime in issue, there is no reason why it would have credited the testimony of these witnesses with respect to the prior acts.